Public Policy Archive

Justice Under Pressure Says BBA Prez Don Frederico

A sense of urgency demands that we provide you with an advance glimpse of Don
Frederico's President's Page, to be published in the Winter edition of The
Boston Bar Journal.

Justice Under Pressure

Everywhere you look, the financial meltdown of 2008 has left its mark.
European governments stagger under the weight of crushing debt. The United
States deficit continues to soar while unemployment rates refuse to drop.
The Massachusetts housing market recorded its lowest October sales in 20
years. Stock markets, although somewhat improved, remain well below their
highs of just a few years ago.

The Massachusetts system of justice is not immune from financial distress,
and is particularly vulnerable. We see this vulnerability play out on
several fronts.

The leaders on both sides of our criminal justice system are now engaged in a
heated debate over the allocation of state tax dollars distributed to district
attorneys' offices and to the Committee for Public Counsel Services. The
district attorneys argue that CPCS has been given more than its fair share of
available funds, that CPCS diverts too much of its budget to private bar
advocates, and that more should be given to DAs to level the playing
field. CPCS argues that it manages its funding efficiently, that the DAs
receive funding from other sources, and that defending the indigent is
sufficiently different from prosecuting them that the budgets of the two groups
cannot fairly be compared. While there no doubt is merit to arguments
advanced by both sides, it seems unlikely that this debate would take on such
significance in a healthier economic climate.

Our judiciary also is reeling from the fiscal shortfall. The Trial
Court remains shackled by a hiring freeze that it self-imposed two years
ago. Attrition during that time has reduced staffing levels in some courts
to as low as fifty-five percent. Virtually all of our already underpaid
Trial Court judges have agreed to take unpaid furloughs in order to avoid
layoffs of court staff. The court has undertaken other extraordinary
measures to reduce costs, and is running out of options. Without
additional funding in near-term budgets, the administration of justice will be
sorely strained.

No group has been harder hit than the organizations that provide legal
services to the poor. Massachusetts legal services organizations, such as
Greater Boston Legal Services, depend on funding from three principal
sources: IOLTA funds, state budgetary allocations, and private
donations. IOLTA funding comes from interest earned on IOLTA accounts for
the temporary deposit of client funds maintained by lawyers and law firms
throughout the Commonwealth. As recently as 2007, Massachusetts IOLTA
accounts generated approximately $31 million in interest. This money was
paid to the Massachusetts Legal Assistance Corporation, the Massachusetts Bar
Foundation and the Boston Bar Foundation to support legal services for the
poor. Because less money has been deposited into those accounts during the
economic downturn, and because banks have lowered the interest rates paid on the
deposited funds, income from Massachusetts IOLTA accounts has experienced a
precipitous decline. In 2010, it dropped to approximately $9 million, less
than one-third of its peak just three years earlier. As a result of low
interest rates and lower balances, total IOLTA revenue could dip as low as $7
million. Every dollar lost through IOLTA means less money to support legal
services, fewer legal services attorneys to address the needs of the poor, and
less access to justice for those who cannot afford to hire lawyers.

The Boston Bar Association is committed to supporting adequate funding for
our prosecutors, our public defenders, our courts, and our legal services
organizations. With respect to legal services, every one of us can play a
role. Here are three examples of what you can do:

1. Join us on February 2, 2011 for our annual Walk to the Hill. It
is an opportunity to show Massachusetts legislators the strong support of the
organized bar for state funding for legal services.

2. If you are in private practice, do what you can to make sure that
your firm is making appropriate use of its IOLTA account and is receiving a
competitive interest rate from the bank that services the account.

3. Donate to legal services organizations and to the Boston Bar
Foundation. If you are not already a member of the BBF Society of Fellows,
become one.

We cannot solve these problems overnight, but in many ways, large and small,
we each can make a difference.